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Sunday, December 11, 2011

Liberal Law Professor Says Kagan Should Recuse

Liberal Law Professor Says Kagan Should Recuse

“If she views herself as a judge of law who is obligated to approach legal issues objectively and open-mindedly without regard to partisan political outcomes, she ought to step aside.” - Professor Eric Segal

By Dell Hill via Doug Ross

This may come as a shock to some of you, but not all Democrats are flaming, left-wing socialists.  In fact, the majority of Democrats are more politically comfortable in the “moderate” category - the so-called “Clinton Democrats”.  I happen to know several such Democrats and very privately they’ll tell you that they don’t agree with everything the far-left espouses, nor do they toe the party line on every important issue of the day.  Very similar, in fact, to the divide that separates TEA party followers with the RINO establishment of the Republican party.  It could easily be said that we have four political parties - socialist Democrats, Centrist Democrats, RINOs and Conservatives.

It’s in that vein we find Professor Eric Segal and his opinion regarding Supreme Court Justice Elena Kagan and the matter of Obamacare being argued before the high court.

“Professor Eric Segal is a widely published constitutional attorney who is a self-professed liberal.  Therefore, when the subject of Elena Kagan's recusal is seen by most Democrats as a partisan issue -- rather than simply an issue of obvious, judicial integrity -- his Slate opinion piece ("A Liberal’s Lament on Kagan and Health Care") represents a breath of fresh air.

...Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.*  She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party.  Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.

Would The One On The Left Vote Against The One On The Right?

So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view.  I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat.  I believe the Affordable Care Act is constitutional... That said, I believe that as a matter of both principle and law, Kagan should not hear the case.

...As many have pointed out, there are legitimate arguments that these rules point to recusal.  Was Kagan a “counsel” or “adviser” on this issue?  We know that she was on an e-mail exchange between her top deputy, Neal Katyal, and Associate Attorney General Tom Perrelli, about a meeting to discuss the litigation strategy for the ACA litigation, and lawyers in her office would be present.  We also know she attended at least one meeting where the litigation was discussed... We don’t know how fully Kagan was involved because the White House (perhaps for legitimate reasons unrelated to this controversy) has not released all of the relevant emails about the matter...

We also know that Kagan wrote an e-mail to Laurence Tribe, a famous Harvard constitutional law professor who was also working for the administration at the time the law passed, in which she said, “I hear they have the votes, Larry!! Simply amazing.”  The email's subject line was "fingers and toes crossed today!"

...She served as the solicitor general of the United States during the time that the ACA was furiously debated in Congress, discussed in town halls across the country, and enacted... [and] We know she celebrated the passage of the law.

...The Supreme Court is increasingly seen as a partisan political institution making political decisions instead of a true court deciding cases under the law.  Justice Kagan has a golden moment to display that at least one Supreme Court justice has integrity and character that exceed her party loyalty and political past.  If she sees herself as a political official who, because of the office she occupies, gets to cast an important vote on an issue that may decide an election, she should stay on the case.  But, if she views herself as a judge of law who is obligated to approach legal issues objectively and open-mindedly without regard to partisan political outcomes, she ought to step aside.  Nothing less than the integrity of the Supreme Court is at stake.

Thank you, professor, for demonstrating that at least one Democrat is capable of publicly advocating for an intellectually honest course of action for Justice Kagan.”

I think it goes without saying; this blog agrees with Professor Segal’s synopsis and conclusion.  And that’s exactly the opinion that most independent legal experts would reach, given the facts as presented.  Justice Kagan knows this.  Barack Obama (the constitutional law professor!) knows this.  Every lawyer serving in congress - and there are dozens of them - knows this.

And most observers feel the high court - even with Kagan voting - will overturn Obamacare on a 5-4 ruling - split along ideological lines.  Without Kagan’s vote, the result would be 5-3.

Oral arguments on the case have been scheduled for early next year and a decision is predicted for as early as late June or early July.  

That timing guarantees the issue will have a profound effect on the presidential election in November.  Should SCOTUS find Obamacare Constitutional, Republicans would have to retain control of the House and retake both the White House and the Senate in order to repeal this very unpopular law.  

Without Control of the Senate, repeal legislation would never pass congressional muster, so in that regard, Obama is currently “sitting pretty”.  If Obama were to fail in his re-election bid, but the Democrats retain control of the Senate, repeal legislation would never reach the new president’s desk because Democrats would block it by filibuster in the Senate!  

All of which makes the Supreme Court decision - combined with the presidential election - the most critical period in the history of the United States.

For Conservatives, the best case scenario would be for Obamacare to be found unconstitutional (which would eliminate the need for repeal legislation) and for the election of a new president in November.  The political “shoe” would then be “on the other foot” and Democrats would find themselves in the very same position Republicans are right now.  

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